“In Odyssey Sys. Consulting Grp., Ltd., SBA No. SIZ-6135, 2021 (Dec. 23, 2021), OHA considered an appeal of size protest by Odyssey for two GSA OASIS contract task order awards to Millennium Engineering and Integration LLC (MEI) for technical and engineering support services under the small business pool. The task order solicitation ‘did not include any express language requesting or requiring that an OASIS prime contractor must certify or recertify its size for this task order.’…”
“The contract also provided for offramping if the contractor became a large business after the novation, merger, or acquisition:
After the execution of a novation agreement or, after a merger or acquisition that does not require a novation, if the Contractor’s size standard changes from a small business concern to other than a small business concern and the Contractor has active task orders, including the exercise of options and modifications at the task order level, the Contractor shall be placed in Dormant Status immediately in accordance with Section H.16. After all the active task orders are closed out, the Contractor shall be Off-Ramped in accordance with Section H.17.
The protester argued that the recertification requirements at 13 C.F.R. § 121.404(g)(2) (requiring recertification after a merger, sale, or acquisition) meant that the agency was requesting size recertification in connection with the task order awards…”
“Odyssey then appealed to SBA Office of Hearings and Appeals, arguing in part that the SBA rule at 13 C.F.R. § 121.404(g)(2)(iii) mean that a ‘request for recertification must occur by operation of law in every solicitation.’ The SBA provided commentary on the appeal, arguing that the ‘regulatory requirement to recertify size following a merger, sale, or acquisition is not a CO request for size certification in connection with an individual order.’
OHA denied the appeal, holding that the size protest was not timely…”
“OHA has clarified any ambiguity with respect to the requirement for recertification after a merger or acquisition. The sole effect is that the agency can no longer count the award as a small business award for goaling purposes. But it has no effect on the small business status for a contractor for future task orders. This is an important clarification of the language in the size regulations. It’s likely the same interpretation would apply to similar recertification requirements under other socioeconomic set-asides, for instance the SDVOSB rules in 13 CFR § 125.18(e)(1)(ii)…” Read the full article here.
Source: SBA Confirms that Size Status Relates Back to Time of Offer, Even After Sale of Small Business – By Shane McCall, March 16, 2022. SmallGovCon.
